Tootalian v. Cohen

296 F. Supp. 1253, 1968 U.S. Dist. LEXIS 11741
CourtDistrict Court, N.D. Ohio
DecidedDecember 20, 1968
DocketNo. C 68-270
StatusPublished

This text of 296 F. Supp. 1253 (Tootalian v. Cohen) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tootalian v. Cohen, 296 F. Supp. 1253, 1968 U.S. Dist. LEXIS 11741 (N.D. Ohio 1968).

Opinion

MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge:

This is an action under Section 205 (g) of. the Social Security Act (42 U.S.C.A. § 405(g), for review of the final decision of the defendant (hereinafter referred to as the Secretary) denying certain social security benefits to the plaintiff. The plaintiff filed an application on October 13,1966, for old age insurance benefits. His application was denied initially and again on reconsideration on June 23, 1967. On December 11, 1967, there was a hearing before a Hearing Examiner of the Secretary at which time the plaintiff, represented by counsel, appeared and testified. A doctor H. E. Miskjian appeared as a witness for the plaintiff. On February 7, 1968, the Hearing Examiner rendered a decision adverse to the plaintiff; and on March 27, 1968, the Appeals Council of the Secretary affirmed the Hearing Examiner’s decision. The plaintiff then filed an action in this Court for judicial review of the decision of the Secretary. The parties are now at issue and the Secretary has moved for summary judgment, which the plaintiff now opposes.

The only issue in this case is the age of the plaintiff under 42 U.S.C.A. § 402(a). The Secretary found that the plaintiff’s date of birth was January 4, 1906, whereas plaintiff claims that he was born January 4,1902.

The function of the District Court in review of Social Security cases is to search the entire record to determine if the decision of the Secretary is supported by substantial evidence. Mitchell v. Gardner, 123 U.S.App.D.C. 195, 358 F.2d 826 (1966) and Miracle v. Celebrezze, 351 F.2d 361 (6th Cir. 1965). If so, the Court must render judgment for the Secretary, even if the Court would have reached a different position had it heard the ease de novo. Walters v. Gardner, 397 F.2d 89 (6th Cir. 1968); King v. Celebrezze, 341 F.2d 108 (6th Cir. 1965). It is the function of the Secretary, not the Court, to resolve conflicts in the evidence and to pass on the credibility of witnesses and documents. Ferenz v. Folsom, 237 F.2d 46 (3 Cir. 1956); Miracle v. Celebrezze, supra; Kelley v. Celebrezze, 243 F.Supp. 18 (D.C.1965). The Court notes that the burden of proof in social security proceedings is on the claimant. Henry v. Garnder, 381 F.2d 191 (6th Cir. 1967); Nelson v. Gardner, 386 F.2d 92 (6th Cir. 1967).

As the sole issue before this Court is whether or not the Secretary’s position is supported by substantial evidence, a brief summary of the evidence in the record is in order.

Naturalization petition for John Tootalian, No. 61203, certificate issued February 18, 1938, showing claimant’s age at the time as 32 years, which would place his birth date in 1906.
Application for Social Security number by the plaintiff dated November 24, 1936, signed by him and giving his date of birth as January 4, 1906.
Application for retirement insurance benefits on October 13, 1968, claiming date of birth of January 4, 1902.
[1255]*1255Report from the Personnel Department of the U. S. Steel Company where the plaintiff was employed in 1930 showing that the plaintiff gave them a January 4, 1906, date for his birth.
Claimant’s request for change in social security records filed July 23, 1963, stating that he wanted to change his date of birth from January 4, 1906, to January 4,1903.
Marriage license certificate issued by the Probate Court at Cleveland to John Tootalian in July, 1930, showing his age at that time as 23 years.
Application for Account No. SS-5 dated November 24, 1936, giving the date of birth of January 4,1906.
Statement of plaintiff’s mother dated December 12, 1966, certified by the diocese of Aleppo Armenian Prelcy stating that plaintiff was born January 4, 1902.
Certificate of birth and baptism diocese of Aleppo Armenian Prelcy dated April 6, 1968, stating that plaintiff was born January 4,1902.
An old certificate in the Turkish language from the Sublime Ottoman State issued 1341, a year in the Ottoman calendar. As aids to the interpretation of this old document, translations are in the record together with a statement from an expert in the Library of Congress to the effect that Turkish authorities always used the Rumi calendar in their official dealings during the Ottoman Empire. The Moslem or Hegira calendar was never used unless specifically indicated on the document.

The plaintiff’s theory in this case is that the Secretary weighed too heavily the information in the record which supported the birth date of 1906 and gave too little weight to material in the record indicating a 1902 birth date. For instance, it was brought out in the record that the claimant used a 1906 birth date both in his application to United States Steel and in his naturalization proceedings. Counsel for plaintiff claims the Secretary placed a high weight of reliability on these two pieces of evidence despite plaintiff’s testimony that he used a later birth date ■ only because it was to his fináncial advantage to do so. The plaintiff’s position, however, raises credibility problems which the Secretary had a right to weigh also.

Similarly, with respect to the certificates issued under the Seal of the Armenian church stating that the plaintiff was born in 1902, the Secretary could reasonably have placed little weight as to their reliability on the grounds that the certificates were issued only in 1966. The certificates were not abstracts of old church records but they are simply the statements in 1966 of witnesses who signed the certificates. (Transcript, pages 29 and 37.) The Secretary could have found that these documents were not reliable on grounds other than the integrity of the witnesses who signed them because of the long time that passed from the birth of the plaintiff before they actually made the statements certified by the church. This is equally true of the certificate issued on the statement of the plaintiff’s mother since there is no indication that her statement is based on ancient records in her possession.

The bulk of the record in this case goes to the reliability of Exhibit 10(a), the old Turkish document written in the Turkish language. It is undisputed in the first place that the document reveals the plaintiff was born in the year 1321, and that the document was issued in the year 1341. This would mean that twenty years had passed from the plaintiff’s birth to the issue date of this document and, therefore, this document on its face is not of the highest order of reliability referred to in 20 C.F.R.

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Bluebook (online)
296 F. Supp. 1253, 1968 U.S. Dist. LEXIS 11741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tootalian-v-cohen-ohnd-1968.